Don’t Be Fooled by the DOJ’s Proposed Legislation

Two years ago, Microsoft refused to comply with a warrant concerning information hosted in Ireland, and the case was brought to court where justices ruled against the tech giant. Recently, however, the 2nd Circuit appeals court ruled in favor of Microsoft, claiming that the US government warrants do not apply to data stored outside of the country.

Despite the ruling, the Department of Justice (DOJ) is now proposing a piece of legislation that would affect Mutual Legal Assistance Treaties (MLATs), allowing the US government to force companies like Microsoft to unlock a server abroad.

According to the proposed legislation documents, Assistant Attorney General Peter J. Kadzik claims that the ideas proposed by the DOJ would help the US government investigate foreigners suspected of being involved in terrorism, urging Vice President Joe Biden to consider having Congress look at the DOJ’s solution.

In a post crafted by a former DOJ lawyer, the proposed legislation would allow the US government to have access to communication from non-US citizens who are located in foreign countries. Pieces of communication subject to the proposed rules would only be available for what the DOJ calls “criminal investigations,” which legalists claim to be helpful, since this restriction could help prevent current MLATs from being used with the purpose of gathering intelligence. Despite the carefully crafted piece of legislation, concessions aren’t enough to cover up for the DOJ’s goals to expand the agency’s reach.

According to Tech Dirt, the DOJ is using this proposed legislation to target laws and statutes that the agency has been abusing for years. Is the DOJ trying to make its work easier?

Take the Wiretap Act for instance, a law that has been rendered toothless ever since the Drug Enforcement Administration (DEA) used a single state judge in California to build a massive wiretapping operation in the Los Angeles suburbs. If the DOJ’s proposed rules are considered and signed into law, remaining restrictions imposed by the Wiretap Act would be lifted for good, making incidents like the one that took place in California more common across the country.

But that’s not all, restrictions imposed by the Stored Communications Act, which was used by the DOJ in its fight against Microsoft, as well as the criminal Pen Register statute would also be lifted under the proposed rules, Tech Dirt reports.

If the DOJ is lucky and Congress goes along with its plan, the dubious wording in the proposed rules would give officials authority to carry searches related to the “prevention, detection, investigation, or prosecution of serious crime, including terrorism.” Targets of investigations would have to be in countries that have executive agreements with the United States.

According to Tech Dirt, the proposal may superficially seem to cater to privacy advocates, but “The self-written loopholes allow for plenty of ‘search first, ask permission later’ action.” If Tech Dit’s assessment is correct, the proposal rules’ dubious wording could further entrap US citizens, helping the authorities to destroy even more of our liberties in the name of security, while targeting foreign servers in the meantime.

Often, I find that the feedback and suggestions I hear from within the libertarian community are unintentionally similar to feedback and suggestions from non-libertarians about the role of government. In fact, I find them to be eerily similar to the way many Americans talk use a phrase many libertarians despise.

Are you among those I’m writing about in this cautionary tale?

That feedback and those suggestions typically involve the word “should.”

“We should do this.”

“This should be done.”

In nearly every case, the word “should” is used without follow-up about how the giver of that feedback or suggestion will perform or help to perform toward their intended outcome.

By only suggesting that something should be done, you assign an obligation or duty to someone else. Many times, that person will agree, but they have priorities and tasks that take precedence.

How do you remove the “should problem”?

That problem disappears when you take on the responsibility of some tasks toward the outcome.

Is it any different from saying “There ought to be a law!”?

Knowing what to address is a great start, though if you don’t have a solution or take action to correct things, are you really part of the solution? Or simply joining the chorus that points out a problem?

One of the things that makes an effective libertarian is having a defined solution in mind when you see a problem in government.

The next time you are about to say “should,” will you have an action plan and support for what you are pointing out? Are you willing to pitch in to solve the problem? Or are you outsourcing the responsibility of what should be done to someone else?

Why Are Libertarians Different? Intent Vs. Outcome

We may look the same. We may use the same language. We put our pants on one leg at a time… Most of us, anyway.

We certainly have a unique way of thinking though.

Of course, our first instinct is not to suggest that “there ought to be a law.” That is the beginning of how we differ from non-libertarians.

The basis of not defaulting to government intervention lies a bit deeper than instinct. We want a lot of the same results: a well-educated society, an end to homelessness, peace with our neighbors, and the freedom to live our lives.

We also like to point out unintended consequences of policy decisions. Inevitably, every government policy idea devised sought to solve a problem, but not everyone follows where that policy idea takes us beyond the policymaker’s intent.

Libertarians recognize intent for what it is. We recognize that someone, somewhere intended their idea to fix an existing problem, prevent a future problem, or make lives better. We also see past intent to look at what happens when this intended solution gets implemented. We see whether it, or something similar, worked in the past. We also examine what we describe as unintended consequences that are likely to occur if the policymakers enact the proposed solution.

We focus on outcome.

We look at policies beyond intent, by focusing looking deeper than the surface, talking points, and smooth sales pitches. We look at people individually, rather than as statistics and metrics that can be manipulated. We examine individual decisions on their own, rather than as part of the aggregate. Put simply, we are looking out for the smallest minority there is… The individual.

Central planners will never be able to do so, because people are just data points. To them, they believe that they can predict what MOST of us will do when faced with a specific decision. The rest do not matter. Those individuals are statistically insignificant.

Are you insignificant?

Libertarians do not believe that you are, and we look at the unintended consequences, incentives, and individual decision-making to fully examine the outcome of a proposed policy or idea, rather than sweeping you, the individual, aside because you do not fit the model they prepared.

Today, ideas are judged by their intent, rather than their outcome. All too often, that means that the “solution” makes a larger or different problem.

To whom is that insignificant?

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